Exclusion from Consumer Protection Act, still a dream for Doctors.?. - Adv. Rohit Erande ©

Healthcare Excluded from new Consumer Protection Act, 2019 ?

Adv. Rohit Erande. ©

It all started with a breaking news that flashed in one of the leading news paper, which stated that Govt. is proposing to keep the Healthcare services out of the purview of new Consumer Protection Act (CPA). No doubt sheer news also gave sigh of relief to Medicos across the World. But that news also clarified that it will not prevent aggrieved persons from approaching consumer forum.

see the below given link of the said news.

https://timesofindia.indiatimes.com/india/consumer-bill-draft-removes-healthcare-from-services/articleshow/69935129.cms

Now lets see what is the reality.

Old Act :

The CPA was first introduced in the year 1986 as a Social Legislation and to protect the interest of Consumers.  It defined the term "Services" as under :

Sec. 2(o)   "service" means service of any description which is made available to potential users and includes, but not limited to, the provision of  facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;

If you see the definition there was no direct  mention of Healthcare Services in the above definition. Thus the Medical Negligence cases for damages were tried in the civil Court only.  
But then came the famous (for medicos infamous) judgement of Hon. Supreme Court (3 judges Bench) in the case of Indian Medical Association V/s. V.P. Shantha - AIR 1996 SC 550 -( https://indiankanoon.org/doc/723973/) that brought Healthcare Services within the wide canopy of CPA. If we see the definition, the words "but not limited to" are wide enough to bring in any and every services under the realm of CPA.  The Court also held when Free of Cost services also come within the realm of CPA.

The Crux of the aforesaid judgement has been summarised by the hon. Court as :

On the basis of the above discussion we arrive at the following conclusions:

(1) Service rendered to a patient by a medical practitioner (except where the doctor renders service free of charge to every patient or under a contract of personal service), by way of consultation, diagnosis and treatment, both medicinal and surgical, would fall within the ambit of 'service' as defined in Section 2(1) (o) of the Act.

(2) The fact that medical practitioners belong to the medical profession and are subject to the disciplinary control of the Medical Council of India and/or State Medical Councils constituted under the provisions of the Indian Medical Council Act would not exclude the services rendered by them from the ambit of the Act.

(3) A 'contract of personal service' has to be distinguished from a 'contract for personal services'. In the absence of a relationship of master and servant between the patient and medical practitioner, the service rendered by a medical practitioner to the patient cannot be regarded as service rendered under a 'contract of personal service'. Such service is service rendered under a `contract for personal services' and is not covered by exclusionary clause of the definition of 'service' contained in Section 2(1) (o) of the Act. (4) The expression 'contract of personal service' in Section 2(1) (o) of the Act cannot be confined to contracts for employment of domestic servants only and the said expression would include the employment of a medical officer for the purpose of rendering medical service to the employer. The service rendered by a medical officer to his employer under the contract of employment would be outside the purview of 'service' as defined in Section 2(1) (o) of the Act.

(5) Service rendered free of charge by a medical practitioner attached to a hospital/Nursing home or a medical officer employed in a hospital/Nursing home where such services are rendered free of charge to everybody, would not be "service" as defined in Section 2(1) (o) of the Act. The payment of a token amount for registration purpose only at the hospital/nursing home would not alter the position.

(6) Service rendered at a non-Government hospital/Nursing home where no charge whatsoever is made from any person availing the service and all patients (rich and poor) are given free service - is outside the purview of the expression 'service' as defined in Section 2(1) (o) of the Act. The payment of a token amount for registration purpose only at the hospital/Nursing home would not alter the position.

(7) Service rendered at a non-Government hospital/Nursing home where charges are required to be paid by the persons availing such services falls within the purview of the expression 'service' as defined in Section 2(1) (o) of the Act.

(8) Service rendered at a non-Government hospital/Nursing home where charges are required to be paid by persons who are in a position to pay and persons who cannot afford to pay are rendered service free of charge would fall within the ambit of the expression 'service' as defined in Section 2(1) (o) of the Act irrespective of the fact that the service is rendered free of charge to persons who are not in a position to pay for such services. Free service, would also be "service" and the recipient a "consumer" under the Act.

(9) Service rendered at a Government hospital/health centre/dispensary where no charge whatsoever is made from any person availing the services and all patients (rich and poor) are given free service - is outside the purview of the expression 'service' as defined in Section 2(1) (o) of the Act. The payment of a token amount for registration purpose only at the hospital/nursing home would not alter the position.

(10) Service rendered at a Government hospital/health centre/dispensary where services are rendered on payment of charges and also rendered free of charge to other persons availing such services would fall within the ambit of the expression 'service' as defined in Section 2(1) (o) of the Act irrespective of the fact that the service is rendered free of charge to persons who do not pay for such service. Free service would also be "service" and the recipient a "consumer" under the Act.

(11) Service rendered by a medical practitioner or hospital/nursing home cannot be regarded as service rendered free of charge, if the person availing the service has taken an insurance policy for medical care whereunder the charges for consultation, diagnosis and medical treatment are borne by the insurance company and such service would fall within the ambit of 'service' as defined in Section 2(1)(o) of the Act.

(12) Similarly, where, as a part of the conditions of service, the employer bears the expenses of medical treatment of an employee and his family members dependent on him, the service rendered to such an employee and his family members by a medical practitioner or a hospital/nursing home would not be free of charge and would constitute 'service' under Section 2(1) (o) of the Act.

This 3 judges bench judgement has been followed till today.

Now lets see the definition of Services under new CPA Act of 2019.

Sec.(42) "service" means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, telecom, boarding or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;

Along with it lets see the definition of 'deficiency' 

Sec. 2(11) "deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service and includes—

(i) any act of negligence or omission or commission by such person which causes loss or injury to the consumer; and...

(ii)deliberate withholding of relevant information by such person to the consumer;

Thus like old Act, there is no specific reference of "healthcare" in the definition of "Services" in 2019 CPA also. But the crucial words "but not limited to" are there in new Act also which are enough to bring all the services under the sun including the Healthcare services, in my opinion. I don't know whether it can be argued that these words "but not limited to" means such other services those are similar to those which are mentioned in the definition.
 Plus, if you see the definition of "deficiency" , it's almost similar to earlier definition and it is enough to bring Medical Negligence case within the purview of new CPA Act. So also the landmark judgement of Hon. Apex Court in the case of V.P. Shantha still holds a good law in this filed and unless a larger bench takes contrary view, it will be a binding precedent. 

The New Act-Bill link :

http://prsindia.org/sites/default/files/bill_files/THE%20CONSUMER%20PROTECTION%20BILL%2C%202019%20Bill%20Text.pdf

Thus in my humble opinion, relationship between Doctors and CPA continues even after passing of New CPA Act. I am open for any correction and I will be happy  for Doctors if I am proved to be wrong. 

New CPA has raised pecunairy jurisdiction of District Forums to Rs.1 Crore, of State forum to Rs.10 Crores and above Rs. 10 Crore, directly in the National Commission. The Complaint has also given right to file case at any place of his choice. Doctors   fear that it will increase filing of frivolous cases. But it is not so. Previously also there was no bar in claiming any amount of compensation. 
But Always remember that one cannot stop any one from approaching the Court, it is the constitutional right available to the citizen. However burden lies on the Complainant him/her to prove his/her case and merely a case if filed that does not mean that it shall be decided in favour of the Complainant.
Doctors have to continue their demand for capping of compensation, compulsory expert  opinion, time limit in deciding the case and formula for calculating the compensation.

Thanks and Regards

Adv. Rohit Erande.
Pune. ©

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